By counsel, Movant filed a joint motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and for an evidentiary hearing. Docket Number (DN) 49. Respondent has responded in opposition to the motion, and Movant has replied. DN 55 and 56. The Court referred this matter to the undersigned Magistrate Judge for report and recommendation. DN 54.

Because it appears that Movant may have withheld the full factual and legal bases in support of his motion to vacate pending ruling by the Court on his request for an evidentiary hearing, the Court shall exercise its discretion, pursuant to Rule 7 of the Rules Governing Section 2255 Proceedings for the United States District Courts, to expand the record. Based upon the expanded record, the Court shall then determine whether an evidentiary hearing is necessary and, if not, deny the request for evidentiary hearing and proceed to a consideration of the merits of the motion to vacate.

Background and Procedural History

Movant appended to his motion to vacate two affidavits to the effect that his trial counsel misinformed him that his Guideline Range would be 4 to 7 years (48 to 84 months). DN 49-1 and 49-2. In light of this mis-advice, Movant allegedly accepted the United States' written offer to plead guilty in exchange for a recommendation of a sentence "at the lowest end of the applicable Guideline Range." Plea agreement, DN 28, Paragraph 10.

Movant claims that counsel was ineffective for misinforming him with respect to his Guideline Range and that, but for the error, he would not have pled guilty but would have insisted on proceeding to trial.

Analysis

To establish ineffective assistance of counsel, Movant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense so as to render the result of the proceeding unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).

In a guilty-plea context, while the performance prong of Strickland remains the same, to establish prejudice, Movant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). "This is an objective, not a subjective, test: the bare recitation of the fact that you would have gone to trial had you received different advice is not enough." Maiyo v. United States, 2014 WL 3932130 (6th Cir.). "[T]o obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

The Court shall consider the prejudice prong first.

Movant has failed to allege facts sufficient to support the prejudice prong of his ineffectiveness claim.

Hill v. Lockhart, supra, instructs that, to determine whether a reasonable person in Movant's position would have insisted on proceeding to trial, the Court should consider "the [likely] outcome at a possible trial." Hill at 60. If the likely outcome is the same or worse than what was achieved by pleading guilty, there was no prejudice. "As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.'" Hill at 59-60 quoting Strickland at 695.

Movant has not alleged that he is actually innocent or a reason why the jury might have acquitted him or why the Court might have sentenced him below the Guideline Range. Therefore, based on the current record, if Movant had proceeded to trial (knowing full-well his true Guideline Range), it appears that his best-case scenario would have been conviction followed by the same Guidelineminimum sentence he received pursuant to the plea agreement. From an objective perspective, counsel's alleged miscalculation of the Guideline Range was not prejudicial. As in the example described in Hill, "[i]t is inconceivable to us... that [but for counsel's alleged ineffectiveness, Movant] would have gone to trial..., or that if he had done so he either would ...

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